Santa Barbara, 2002 Misdemeanor 273.5 Conviction Vacated

More than twenty years ago, in 2002, our client was arrested in Santa Barbara County and later charged in the Santa Barbara Superior Court with violating Penal Code § 273.5(a) as a misdemeanor. There were no visible injuries to the victim, who was his wife from 2001 until 2016.

While represented by the public defender, our client quickly entered into a no contest plea to the charge so he could be released from jail as soon as possible. He was placed on three years of informal probation with an obligation to attend fifty-two batterers classes, pay a court fine and make a donation to a battered women’s shelter.

At the time he entered his plea, the judge did not warn him under Penal Code § 1016.5 that a conviction for the offense that he was entering a plea to would cause him adverse immigration consequences. His attorney also did not tell him this.

At the time, all our client was concerned with was getting out of jail because his wife was pregnant with the married couple’s first child and he wanted to be at home to help her and, in case of an emergency, be there to take her to the hospital, if necessary, which the case disposition did accomplish. Accordingly, he entered into a plea quickly, without consideration of any adverse immigration consequences because he was not told there were any.

At that time, our client was not a U.S. citizen (and still is not). He born in Mexico in 1981 and came to the United States seven years later on a family visa with his mother, father and several siblings.

At the time he entered his plea in this case 14 years later, he would not have entered pleas to a violation of Penal Code § 273.5(a) had he known such a plea would someday bar him from becoming a citizen of the United States.

Our client, age 41 in 2022, then called up Greg Hill & Associates, asking if it was possible to , have his plea in this case vacated under Penal Code §§ 1016.5(a) and 1437.7(a)(1) because earlier in the year, he attempted to start the citizenship application process and was advised that the conviction in this case bars him from becoming a U.S. citizen.

Greg listened to the client explain the case facts and asked him about his family history as of 2002, when the case took place. The client has seven brothers and sisters at the time, and no family still in Mexico, including aunts and uncles. Everyone was in the U.S., mostly in the Ventura and Santa Barbara areas.

Moreover, the client had become an American in seemingly all ways he could. He even went by an American (English) name that meant the same thing as his Spanish name. He went to elementary school, middle school and high school in the Santa Barbara area. He regularly went to the Ventura Boys & Girls Club and even worked there as a youth leader. He worked construction with his brother’s company. However, he was not a legal U.S. citizen yet.

Our office then prepared, filed, served and appeared in the Santa Barbara Superior Court on the motion to vacate.

The motion explained that a conviction for even a misdemeanor violation of Penal Code § 273.5(a) is an aggravated felony for purposes of the federal Immigration and Nationality Act (INA) (Moncrieffe v. Holder (2013) 569 U.S. 184, 187-188; Sessions v. Dimaya (2018) 138 S. Ct. 1204, 1210-1211). One convicted of an aggravated felony is presumptively deportable. 8 U.S.C.S. §§ 1227 (a)(2)(A)(iii) [“Any alien who is convicted of an aggravated felony at any time after admission is deportable”]; 1228(c) [“An alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States”]; United States v. Palomar-Santiago (2021) ____ U.S. ____, 141 S. Ct. 1615, 1619, 209 L.Ed.2d 703, 707; Moncrieffe v. Holder (2013) 569 U.S. 184, 187, 133 S. Ct. 1678, 185 L.Ed.2d 727 [a noncitizen convicted of a crime classified as an “ ‘aggravated felony’ ” is not only deportable, but also ineligible for discretionary forms of relief].).

Our motion explained that with this conviction, in other words, our client faced deportation back to Mexico. He lived in constant fear of being detained and then deported at any time.

The motion also presented a lengthy declaration from our client with photographs of our client in school and at various family events over the years before the conviction to show our client would not have knowingly agreed to a conviction for domestic violence, making him deportable, if it meant he would have to leave the life he had led in the United States and hoped to continued leading. Instead, he would have urged his public defender to resolve the case for any conviction (i.e., battery (Penal Code § 242, or trespassing, Penal Code § 602) that did not lead to deportation, even if he had to spend more time in jail – if it meant he would not be deported.

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